20090727final_order_no_30866.pdf

Offce ofthe Secreta
Service Date
July 27, 2009
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION OF )
QWEST CORPORATION FOR APPROVAL ) CASE NO. QWE-T-08-07
OF NON-IMPAIRED WIRE CENTER )
LISTS PURSUANT TO THE TRIENNIAL ) ORDER NO. 30866REVIEW REMAND ORDER )
On June 20, 2008, Qwest Corporation fied a Petition requesting Commission
approval of Qwests identification of non-impaired wire centers compiled pursuant to the Federal
Communications Commission's Triennial Review Remand Order (TRRO). According to terms
of the federal Telecommunications Act of 1996, Qwest must provide access to specific network
elements at its wire centers if "the failure to provide access to such network elements would
impair the abilty of the telecommunications carier seeking access to provide the services that it
seeks to offer." 47 U.S.C. § 2SI(d)(2)(B). The TRRO, among many other things, established
standards to determine that a wire center no longer is impaired; that is, the presence of
competitors' facilties in the wire center should make the network elements available from
multiple sources.
BACKGROUND AND QWEST'S PETITION
In this case, Qwest alleges the presence of competitor facilties in two Boise wire
centers makes some unbundled network elements (UNEs) available from other sources and thus
meets the "non-impairment" standard established by the FCC. A determination of non-
impairment affects the price at which Qwest must make specific network elements available to
competitors, and whether Qwest is obligated to provide access to a network element at alL. If a
wire center is impaired, Qwest must provide UNEs to competitive local exchange cariers
(CLECs) at rates based on the FCC's total element long-ru incremental cost (TELRIC) pricing
methodology. If a wire center no longer is impaired, the affected network elements are no longer
subject to Section 2S1(c)(3) of the Act and instead are governed by the non-TELRIC pricing
standard in Sections 201 and 202, which means Qwest is free to set market rates for those
elements.
Under the TRRO framework, a wire center is deemed no longer impaired regarding
access to DS 1 transport on routes connecting a pair of wire centers where both wire centers
contain at least four fiber-based collocators or at least 38,000 business access lines (Tier 1). For
ORDER NO. 30866 1
DS3 transport and dark fiber transport, there is no impairment on routes connecting a pair of wire
centers where both wire centers contain at least three fiber-based collocators or at least 24,000
business lines (Tier 2). Qwests Petition claims its Boise Main wire center meets the Tier 1
standards for non-impairment for DS1 and DS3 Transport and Dark Fiber, and its Boise West
wire center meets the Tier 2 stadards for DS3 Transport and Dark Fiber. Qwest Petition, p. 10.
Qwests Petition alleges that it previously implemented a detailed, multi-step process
to generate accurate wire center data, permit CLECs to verify the data, and identify the wire
centers in Qwests operating areas that meet the non-impairment thresholds. Based on the data,
Qwest fied a list of wire centers with the FCC. According to Qwests Petition, several CLECs
thereafter requested that state utility commissions open proceedings to determine and establish
line counts and numbers of collocators in Qwests wire centers. In 2007, Qwest and several
CLECs negotiated a multi-state settlement agreement in TRRO wire center dockets pending in
Arizona, Colorado, Minnesota, Oregon, Utah, and Washington.
Qwest did not fie for approval of its non-impaired wire center list in Idaho as par of
the earlier multi-state process, and now seeks approval of the Boise wire centers it identified as
meeting the non-impaired standards. Qwest also asserts that a finding of non-impairment
triggers "at least two other issues relating to the conversion of the element from a Section 251
UNE to a non-(Section) 251 element." Qwest Petition, p. 13. First, Qwest asks the Commission
to "confirm Qwests right to assess a nonrecurring charge (NRC) at applicable price-listed rates
for converting impacted high-capacity loop and transport facilties in non-impaired wire centers
to alternative products." ¡d. Second, Qwest requests that the Commission approve the process
set forth in the settlement agreement to direct future identification of non-impaired wire centers
in Idaho. If that process to identify non-impaired wire centers is not adopted by the Commission,
Qwest asserts the Commission "should require Qwest to provide notice to CLECs of additions to
the list of non-impaired wire centers and, if the CLECs seek additional information, should direct
Qwest to provide the CLECs with the methodology by which Qwest determined that a wire
center meets the TRRO's non-impairment criteria relating to numbers of business lines and fiber
collocators." Qwest Petition, p. 14.
On July 9, 2008, the Commission issued a Notice of Petition and Notice of
Intervention Deadline. Petitions to Intervene were subsequently fied by Integra Telecom of
Idaho, Inc.; Electric Lightwave, LLC dba Integra Telecom; Eschelon Telecom dba Integra
ORDER NO. 30866 2
(collectively referred to as Integra); and 360networks (USA) Inc. Petitions to Intervene were
granted by the Commission in Order Nos. 30618 and 30619. The CLEC intervenors thereafter
collaborated in their paricipation in the case and fied testimony of only one witness on behalf of
all intervenors. Accordingly, we refer to all the Intervenors as Joint Intervenors or as simply the
Intervenors.
In its Petition, Qwest recommended the Commission "conduct an expedited
proceeding to review and establish wire center line counts and numbers of fiber collocators per
wire center." Qwest Petition, p. 10. Qwest notified Staff, however, that it preferred to discuss
the issues informally with the Intervenors and attempt to resolve the issues consistent with the
settlement agreement reached in other state proceedings. After these discussions were
unsuccessful, Qwest on Februar 6, 2009, fied a Motion for Informal Prehearing Conference.
The paries thereafer presented a procedural schedule to the Commission, and on April 1,2009,
the Commission issued Procedural Order No. 30763 and Notice of Hearng to establish the
procedure to complete the case, including a hearing to convene on June 22, 2009. A few days
prior to June 22, the paries requested that the hearng be vacated and that the record be
established by stipulation of the paries. On July 2, 2009, Qwest and the Intervenors filed a Joint
Stipulation agreeing to waive the evidentiar hearing and submit the case on fied documents,
including prefied testimony and exhibits. The Joint Stipulation states the parties' agreement "to
submit this docket for the Commission's final order and decision based upon the wrtten record"
identified in the Stipulation. Joint Stipulation, p. 2. The Stipulation also requests approval of
two Motions for Admission Pro Hac Vice fied by the paries' out-of-state attorneys. Joint
Stipulation, p. 3.
DISCUSSION OF ISSUES
Non-Impairment Standard for Boise Main and Boise West Wire Centers
The primar substative issue presented by Qwest' s Petition involves a determination
that Qwests Boise Main and Boise West wire centers meet the FCC's stadard to be classified
as non-impaired. The TRRO establishes specific stadards for determining that suffcient
competitor facilities are present in a wire center to no longer be impaired. The thresholds var
according to the type of network element considered to be available from different sources. For
dedicated interoffce transport, a determination of non-impairment depends on the number of
business lines and fiber-based collocators in a paricular wire center. Tr. p. 12. A wire center
ORDER NO. 30866 3
meets a Tier 1 standard if there are four or more fiber-based collocators, or 38,000 or more
business lines, in the wire center. Tr. p. 14, citing 47 C.F.R. § 51.319( e )(3)(i). A Tier 2 standard
is met if there are at least three fiber-based collocators, or at least 24,000 business lines, in the
wire center. Tr. p. 15, citing 47 C.F.R. § 5L.319(e)(3)(ii).
Interoffce transport facilities var by their capacity to car traffic. The facilties
relevant to this case are DS i and DS3 interoffce transport facilities, also known as high-capacity
transport facilities. Tr. p. 7. Interoffice transport for DS i capacity is considered not impaired
between two Tier 1 wire centers. Tr. p. 17. Thus, a finding of non-impairment relieves Qwest of
its obligation to provide unbundled DS 1 interoffce transport on routes connecting two Tier 1
wire centers. Tr. p. 17, citing 47 C.F.R. § 5L.319(e)(2)(ii)(A). For DS3 capacity level, there is
no impairment for interoffce transport on routes connecting wire centers that meet either the
Tier 1 or Tier 2 standards. Qwest is no longer obligated to provide unbundled DS3 interoffice
transport on routes connecting either Tier 1 or Tier 2 wire centers. Tr. p. 17, citing 47 C.F.R. §
51.319(e)(2)(iii)(A).
The Intervenors concede that Qwest meets at least one of the non-impaired standards
for interoffce transport. The Intervenors testified that "(b lased on review of the supporting
information provided by Qwest, the Joint CLECs currently do not dispute that Boise Main and
Boise West have the minimum number of fiber-based collocators to be classified as Tier 1 and
Tier 2 respectively." Tr. p. 93. On this undisputed record the Commission finds that Qwests
Boise Main wire center meets the Tier 1 non-impaired standard for interoffce transport, and that
its Boise West wire center meets the Tier 2 non-impaired standard for interoffice transport.
In its Petition, Qwest requested Commission determination of non-impairment only
in regard to interoffice transport, but in its prefied testimony asserted that the Boise Main wire
center also meets "the non-impairment threshold for DS3 unbundled loops." Tr. p. 32. Qwest
acknowledged that its Petition "inadvertently failed to mention non-impairment for DS3 loops in
the Boise Main wire center," but asserted in testimony that "a finding that access to DS3 loops is
non-impaired in Boise Main necessarily follows" from the evidence presented. Tr. p. 32,
footnote 20.
The Intervenors challenge Qwest's belated claim to a non-impairment designation for
DS3 loops on several counts. First, because Qwest did not include DS3 loop impairment in its
original request, the Intervenors argue the Commission should use the most recent data to
ORDER NO. 30866 4
determine whether the standard for non-impairment is met. For DS3 loop, the non-impaired
threshold is the presence of at least 38,000 business lines in addition to four or more fiber-based
collocations in the wire center. Tr. p. 110. Qwest filed year-end 2007 data with its Petition fied
in June 2008. The Intervenors assert that "because Qwest did not make its request for DS3 non-
impairment until its April 17, 2009 testimony, Qwest should have relied upon end of year 2008
switched business line counts rather than end of year 2007." Tr. p. 93.
Second, the Intervenors contend Qwest improperly counted switched business lines in
its Boise Main wire center by including residential loops and non-switched capacity in its count.
Tr. pp. 110-111. Finally, the Intervenors testified they were not able to verify Qwests count for
Intervenor Integra's switched business lines, raising reliabilty concerns about Qwests count of
switched business lines in the Boise Main wire center. Tr. pp. 120-121.
The Commission declines to make a determination of non-impairment for DS3 loop
for several reasons. First, Qwest made no request in its Petition that the Commission determine
whether the non-impaired standard for DS3 loops was met in the Boise Main wire center, nor did
Qwest seek to amend its Petition to include a request. Second, Qwest was clear in rebuttal
testimony that "there are curently no DS3 unbundled loops in the Boise Main wire center,"
raising concerns for the Commission about reaching a meaningless decision. Tr. pp. 177, 193.
Finally, a finding of non-impairment should be based on the most recent data to support a
determination of the current status of a wire center. The record does not reveal whether the 2008
year-end data supports a finding of non-impairment for DS3 loops in the Boise Main wire center.
Process for Future Non-Impairment Proceedings
Qwest included in its Petition a request that the Commission "address the process for
future updates of Qwests list of non-impaired wire centers." Petition, p. 13. Qwest
recommended the process be the same as set forth in the multi-state settlement agreement, and
that it include confirmation of Qwests right to charge for converting UNE facilties to
alternative arrangements. Petition, p. 13. The transition period recommended by Qwest once
non-impairment is established is 90 days. Petition, p. 14. The Intervenors challenge paricular
pars of Qwests proposal, including the conversion charge and transition period, and recommend
that Qwest notify them when a wire center is within a certain number of business lines or fiber
collocators to be approaching non-impaired status.
ORDER NO. 30866 5
The Commission will provide guidance for Qwest s future non-impairment
proceedings. Because the Intervenors' dispute with Qwests count of business lines wil affect
the process of future proceedings if not resolved, the Commission wil discuss that issue to
facilitate new non-impairment proceedings.
Qwest requests that the Commission approve the specific items in the Settlement
Agreement for processing its future applications for identification for non-impaired wire centers.
Intervenors oppose adoption of the terms of the Settlement Agreement for Idaho proceedings.
Some of the specific procedural terms in the Settlement Agreement differ from this
Commission's procedures and we decline to approve it in the absence of agreement by the
Intervenors. It is possible and reasonable, however, to direct some aspects for the processing of
future applications filed by Qwest. Accordingly, the Commission directs the following for future
applications filed by Qwest for identification of non-impaired wire centers:
1. Qwest may request additions of non-impaired wire centers based on the
number of fiber-based collocators or on the number of line counts, and
must provide the most recent data available to support its application;
2. At least ten days prior to filing its application, Qwest should provide
notice to all impacted CLECs and request that all interested paries sign a
protective order for confidential information;
3. Qwest must fie with its application supporting data suffcient to support
the counts of fiber-based collocators and/or line counts;
4. If Qwest requests processing by Modified Procedure, the Commission wil
promptly fie a Notice of Application and Notice of Modified Procedure
providing for a 21-day comment period;
5. If there are no objections to Qwests application, the effective date for
non-impairment will be the date the Commission issues an order once the
application has been fully submitted and processed by Modified
Procedure;
6. If any party disputes Qwests proposed non-impairment designations, the
paries may request that the Commission use its best efforts to resolve the
dispute within 60 days of the date of the objection.
When determining the number of switched business lines in a wire center, Qwest is
bound to use the definition provided by the FCC in its rule at 47 C.F.R. § 51.5. As written, the
rule states that the number of business lines in a wire center "shall equal the sum of all
ORDER NO. 30866 6
incumbent LEC business switched access lines, plus the sum of all UNE loops connected to that
wire center, including UNE loops provisioned in combination with other unbundled elements."
Tr. p. 108, citing 47 C.F.R. § 51.5. Clearly, the rule allows inclusion of all UNE loops, including
loops provisioned in combination with other unbundled elements, in determining a number of
business lines in a wire center. The Intervenors contend that Qwest improperly counted the
business lines by including UNE-L lines that are used to serve residential and non-business
customers, and by including capacity used to provide data services in its UNE-L line counts. Tr.
p. 109. The Commission finds that Qwest is obligated and entitled to apply the definition of
business line as wrtten by the FCC. In future fiings, if a CLEC believes Qwest has not properly
applied the rule to count business lines as the FCC directs, it can state that objection in its
response to Qwest's application.
The Intervenors contend that the 90-day transition period in the Settlement
Agreement is not long enough to transition impacted circuits from UNEs to alternative
arangements once a finding of non-impairment has been made. The Intervenors recommend
that the transition process allow up to one year, or at least six months, to make the transition
from UNEs to alternative services. Qwest points out that this determination is not critical in this
case because "there are no services that wil need to be transitioned at the present time" as a
result of a non-impairment finding. Tr. p. 193. Qwest nonetheless requests that the Commission
make a determination about a transition period for future cases, and argues that the 90-day
transition period agreed to in the Settlement Agreement is adequate. Tr. p. i 95. It is not
necessary for the Commission to make a final determination on a transition period at this point,
but wil state its concern that a 90-day transition period may be inadequate for a CLEC to
transition from UNEs to alternative services. The Commission is not bound by the terms of the
Settlement Agreement, and wil determine an appropriate transition period in future filings if the
paries do not agree on the transition time.
Finally, the Commission briefly addresses the paries' argument regarding the need to
change circuit identification, and Qwests $25 charge for converting UNEs to other services.
Regarding the change in circuit identification, Qwest testified that its computer system that
maintains the data base is leased from Telcordia (formerly Bell Labs), and that Telcordia's
standards require changing circuit identifications when changing UNEs to a tariffed service. Tr.
ORDER NO. 30866 7
pp. 196-97, 200-201. On this record, the Commission finds that it is appropriate for Qwest to
change the circuit identification when changing UNEs to tariffed service.
The Commission also finds it has no basis for disallowing Qwest s $25 charge to
convert UNEs to a private line once a finding of non-impairment, has been made. Qwest testified
that the $25 charge is contained in its FCC Tariff No. I, Section 5.2.2(C), Design Change
Charge. Tr. p. 249. On the record presented, the Commission finds that Qwest may charge the
conversion rate as set forth in its FCC tariff.
Based on the record in this case, the Commission finds that Qwest s Boise Main wire
center meets the Tier I non-impaired standard for interoffice transport, and that its Boise West
wire center meets the Tier 2 non-impaired standard for interoffice transport. This determination
is binding on all CLECs that request high-capacity interoffice transport from Qwest through
these wire centers. Qwest is directed to fie future Petitions for determination of non-impaired
wire centers consistent with this Order.
J)RDER
IT is HEREBY ORDERED that Qwests Petition for determination of non-
impairment in its Boise Main and Boise West wire centers is approved. Qwest s Boise Main
wire center meets the Tier I non-impaired standard for interoffice transport, and its Boise West
wire center meets the Tier 2 non-impaired standard for interoffice transport.
IT is FURTHER ORDERED that the Motions for the limited admission of out-of-
state counsel (Pro Hac Vice) filed by Qwest and 360networks (USA) Inc. are granted.
THIS is A FINAL ORDER. Any person interested in this Order may petition for
reconsideration within twenty-one (21) days of the service date of this Order. Within seven (7)
days after any person has petitioned for reconsideration, any other person may cross-petition for
reconsideration. See Idaho Code § 61-626.
ORDER NO. 30866 8
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this .: r¡ +4
day of July 2009.
-BL~¿)JI~MPiON, ~SIDENT
-
6W Jißk
MARSHA H. SMITH, COMMISSIONER
~~~~MACK A. REDFORD'~IONER
ATTEST:
€f.~Je D. Jeweií
C mission Secretary
O:QWE-T-08-07_ws3
ORDER NO. 30866 9